Offenses and penalties under the Surrogacy (Regulation) Act, 2021

Introduction - 

Surrogacy (Regulation) Act, 2021 was enacted in the year 2021 and came into force on 25 January 2022. Chapter VII Section 38 to Section 45 deals with Offenses and penalties. 

Offenses and penalties under the Surrogacy (Regulation) Act, 2021 (Section 38 to Section 45) - 

 Prohibition of commercial surrogacy, exploitation of surrogate mothers and children born through surrogacy  - 

      According to Section 38 (1) No person, organization, surrogacy clinic, laboratory, or clinical establishment of any kind shall -

      (a) undertake commercial surrogacy, provide commercial surrogacy or its related component procedures or services in any form or run a racket or an organized group to impanel or select surrogate mothers or use individual brokers or intermediaries to arrange for surrogate mothers and for surrogacy procedures, at such clinics, laboratories or at any other place;

      (b) issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated, any advertisement in any manner regarding commercial surrogacy by any means whatsoever, scientific or otherwise;

      (c) abandon or disown or exploit or cause to be abandoned, disowned or exploited in any form, the child or children born through surrogacy;

      (d) exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner whatsoever;

      (e) sell human embryo or gametes for the purpose of surrogacy and run an agency, a racket or an organization for selling, purchasing or trading in human embryos or gametes for the purpose of surrogacy;

      (f) import or shall help in getting imported in, whatsoever manner, the human embryo or human gametes for surrogacy or for surrogacy procedures; and

     (g) conduct sex selection in any form for surrogacy. 

(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), contraventions of the provisions of clauses (a) to (g) of sub-section (1) by any person shall be an offence punishable with imprisonment for a term which may extend to ten years and with fine which may extend to ten lakh rupees.

(3) For the purposes of this section, the expression “advertisement” includes any notice, circular, label, wrapper or any other document including advertisement through the internet or any other media, in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal light, sound, smoke or gas.

 Punishment for contravention of provisions of Act — 

      According to Section 39(1) Any registered medical practitioner, gynecologist, pediatrician, embryologist or any person who owns a surrogacy clinic or is employed with such a clinic or center or laboratory and renders his professional or technical services to or at such clinic or center or laboratory, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act (other than the provisions referred to in section 38) and rules and regulations made thereunder shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees.

    (2) In case of subsequent or continuation of the offense referred to in sub-section (1), the name of the registered medical practitioner shall be reported by the appropriate authority to the State Medical Council concerned for taking necessary action including suspension of registration for a period of five years.

 Punishment for not following altruistic surrogacy — 

         According to Section 40 of the said Act, any intending couple or intending woman or any person who seeks the aid of any surrogacy clinic, laboratory or of a registered medical practitioner, gynecologist, pediatrician, embryologist or any other person for not following the altruistic surrogacy or for conducting surrogacy procedures for commercial purposes shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees for the first offense and for any subsequent offense with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees.

  Penalty for contravention of provisions of Act or rules for which no specific punishment is provided.— 

         According to Section 41 of the Surrogacy Regulation Act 2021 whoever contravenes any of the provisions of this Act, rules or regulations made thereunder for which no penalty has been provided in this Act, shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to five lakh rupees and in the case of continuing contravention with an additional fine which may extend to ten thousand rupees for every day during which such contravention continues after conviction for the first such contravention.

Presumption in the case of surrogacy.— 

     As per Section 42 of the said Act, Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), the court shall presume, unless the contrary is proved, that the women or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose other than those specified in clause (ii) of section 4 and such person shall be liable for abetment of such offense under section 40 and shall be punishable for the offense specified under that section.

Offense to be cognizable, non-bailable, and non-compoundable — 

     According to Section 43 of the said Act, Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable.

Cognizance of offenses — 

     As per Section 44 (1) of the Surrogacy Act 2021.  No court shall take cognizance of any offense punishable under this Act except on a complaint in writing made by--

    (a) the appropriate authority concerned, or any officer or an agency authorized in this behalf by the  Central Government or the State Government, as the case may be, or the appropriate authority; or

     (b) a person including a social organization who has given notice of not less than fifteen days in the manner prescribed, to the appropriate authority, of the alleged offense and of his intention to make a complaint to the court

(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offense punishable under this Act.

Certain provisions of the Code of Criminal Procedure, 1973 not to apply (Section 45).— 

        Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), Chapter XXI A of the said Code relating to plea bargaining shall not apply to the offenses under this Act. Surrogacy (Regulation) Act, 2021 was enacted in the year 2021 and came into force on 25 January 2022. Chapter VII Section 38 to Section 45 deals with Offenses and penalties. 

See Also... 

Rights of Surrogate Child

Prohibition and regulation of surrogacy clinics

Regulation of surrogacy and surrogacy procedures.